Citation Nr: 0012099
Decision Date: 05/08/00 Archive Date: 05/18/00
DOCKET NO. 99-17 446 ) DATE
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THE ISSUES
1. Whether a March 23, 1981 decision of the Board of
Veterans' Appeals denying a total rating based on individual
unemployability due to service connected disability should be
revised or reversed on the grounds of clear and unmistakable
error.
2. Whether a May 4, 1982 decision of the Board of Veterans'
Appeals denying a total rating based on individual
unemployability due to service connected disability should be
revised or reversed on the grounds of clear and unmistakable
error.
3. Whether a February 14, 1983 decision of the Board of
Veterans' Appeals denying a total rating based on individual
unemployability due to service connected disability should be
revised or reversed on the grounds of clear and unmistakable
error.
REPRESENTATION
Moving Party Represented by: Paralyzed Veterans of America,
Inc.
APPEARANCE AT ORAL ARGUMENT
Veteran
ATTORNEY FOR THE BOARD
Robert E. P. Jones, Counsel
INTRODUCTION
The veteran served on active duty from August 1948 to August
1949 and from September 1950 to August 1952.
This matter is before the Board of Veterans' Appeals (Board)
as an original action on the motion of the appellant alleging
clear and unmistakable error in Board decisions dated in
March 1981, May 1982, and February 1983. Another issue
prosecuted by the veteran and arising from an adverse
decision of the Department of Veterans Affairs (VA) Regional
Office (RO) in Detroit, Michigan is addressed in a separate
Board decision under Docket Number 97-33 677.
The veteran and his service representative appeared at a
hearing before the undersigned Board member at the Detroit,
Michigan RO in July 1998. At that time, the veteran's
representative raised allegations of clear and unmistakable
error in prior Board decisions. A transcript of that hearing
is of record.
FINDINGS OF FACT
1. In March 1981, May 1982, and February 1983 decisions the
Board denied the veteran's claim for a total rating based on
individual unemployability due to service connected
disability on the basis that the veteran was not unemployable
solely to service-connected disabilities.
2. The veteran alleges that evidence then of record was
improperly weighed, and available Social Security
Administration records were not obtained, at the time of the
March 1981, May 1982 and February 1983 Board decisions.
CONCLUSION OF LAW
The veteran's allegation of clear and unmistakable error in
the March 23, 1981, May 4, 1982, and February 14, 1983 Board
decisions denying entitlement to a total rating based on
individual unemployability due to service-connected
disability fails to meet the threshold pleading requirements
for revision of the Board decisions on grounds of clear and
unmistakable error. 38 U.S.C.A. § 7111 (West 1991 & Supp.
1999); 38 C.F.R. §§ 20.1403, 20.1404 (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
A Board decision is subject to revision on the grounds of
clear and unmistakable error and must be reversed or revised
if evidence establishes such error. 38 U.S.C.A. § 7111(a).
Motions for review of Board decisions on the grounds of clear
and unmistakable error are adjudicated pursuant to
regulations published by VA in January 1999. 38 C.F.R. §§
20.1400-1411 (1999). According to the regulations, clear and
unmistakable error is the kind of error, of fact or of law,
that when called to the attention of later reviewers compels
the conclusion, to which reasonable minds could not differ,
that the result would have been manifestly different but for
the error. 38 C.F.R. § 20.1403(a). Generally, clear and
unmistakable error is present when either the correct facts,
as they were known at the time, were not before the Board, or
the statutory and regulatory provisions extant at the time
were incorrectly applied. Ibid. Review for clear and
unmistakable error in a prior Board decision must be based on
the record and the law that existed when the decision was
made. 38 C.F.R. § 20.1403(b).
The regulations cited above further provide that to warrant
revision of a Board decision on the grounds of clear and
unmistakable error, there must have been an error in the
Board's adjudication of the appeal which, had it not been
made, would have manifestly changed the outcome when it was
made; if it is not absolutely clear that a different result
would have ensued, the error complained of cannot be clear
and unmistakable. 38 C.F.R. § 20.1403(c). Examples of
situations that are not clear and unmistakable include the
following: (1) Changed diagnosis. A new diagnosis that
"corrects" an earlier diagnosis considered in a Board
decision; (2) Duty to assist. The Secretary's failure to
fulfill the duty to assist under 38 U.S.C.A. § 5107(a); and,
(3) Evaluation of evidence. A disagreement as to how the
facts were weighed or evaluated. 38 C.F.R. § 20.1403(d).
Moreover, clear and unmistakable error does not include the
otherwise correct application of a statute or regulation
where, subsequent to the Board decision challenged, there has
been a change in the interpretation of the statute or
regulation. 38 C.F.R. § 20.1403(e).
In addition to the above, a motion for clear and unmistakable
error in a Board decision must satisfy specific pleading
requirements, and if it does not, the motion must be denied.
38 C.F.R. § 20.1404(b). Non-specific allegations of failure
to follow regulations, failure to give due process, and other
general, non-specific allegations of error are examples of
allegations that will not meet the pleading requirements
necessary to file a motion for clear and unmistakable error
in a Board decision. Ibid.
At a hearing before the undersigned member of the Board in
July 1998 the veteran claimed that the previous Board
decisions were clearly and unmistakable erroneous because he
currently had a total rating based on individual
unemployability in effect and his service-connected
disabilities were currently of the same severity as they were
when the Board decisions in question were promulgated. The
veteran further claimed that there was clear and unmistakable
error because the Board had failed to grant service
connection for other disabilities, which should have been
considered service-connected and thus considered in
determining if the veteran was unemployable due to service
connected disability. Finally the veteran asserted that
there was clear and unmistakable error in the previous
decisions because VA did not obtain the veteran's Social
Security Administration records and thus failed in its duty
to assist.
The regulation clearly states that a failure of VA in the
duty to assist can not be considered clear and unmistakable
error. 38 C.F.R. § 20.1403(c). Accordingly, the failure of
the Board to obtain Social Security records prior to
implementing the March 1981, May 1982 and February 1983 Board
decisions can not be considered clear and unmistakable error.
The Board notes that in Tetro v. West, No. 97-1192 (U.S. Vet.
App. Apr. 4, 2000) the U.S. Court of Appeals for Veteran's
Claims held that the Board's failure in a prior Board
decision to fulfill the duty to assist under 38 U.S.C.
§ 5107(a) by obtaining all relevant Social Security
Administration (SSA) records regarding the veteran's
disability and employability vitiates the finality of that
prior Board decision. As a consequence, for purposes of
awarding a proper effective date with respect to a subsequent
award of the VA benefits, the prior claim which was the
subject of the prior Board decision remains open. In this
case, by a decision dated June 13, 1979, the veteran was
awarded SSA disability benefits, effective from February 6,
1978. The first notice the veteran provided the VA of the
award of SSA disability benefits was on March 27, 1991. The
VA must have notice that relevant evidence may exist, or
could be obtained, in order to trigger the 38 C.F.R.
§ 5107(a) duty. Gobber v. Derwinski, 2 Vet.App. 470 (1992);
Robinnette v. Brown, 8 Vet.App. 69 (1995). As notice of
relevant SSA documents was not provided until March 27, 1991,
subsequent to each of the prior B.V.A. decisions which denied
entitlement to a total rating for compensation purposes based
on individual unemployability, the finality of those prior
Board decisions is not vitiated.
The veteran also claims that he currently has been determined
to be unemployable due to service-connected disability by the
Board and that his service-connected disabilities were just
as disabling when he lost his job in 1978 as they are now.
In this case the veteran is claiming that the Board failed to
evaluate the evidence correctly in the Board decisions in
question when denying his claim. However, the regulation
with respect to clear and unmistakable error states that a
disagreement as to how the facts were weighed or evaluated is
not clear and unmistakable error. 38 C.F.R. § 20.1403(d).
Finally the veteran claims that there was clear and
unmistakable error in the Board decisions in question because
the Board did not consider the veteran's non service-
connected disabilities to be secondary to his service-
connected disabilities for purposes of making the
determination of unemployability. The Board notes that the
Board had determined in prior final decisions not at issue
that the veteran's non service-connected disabilities were
unrelated to his service-connected disabilities. The veteran
has not raised the issue of clear and unmistakable error in
any of the specific final Board decisions denying secondary
service connection. Consequently, the fact that prior final
Board decisions not at issue did not grant secondary service
connection for non service-connected disabilities can not be
considered in determining whether or not there was clear and
unmistakable error in the March 1981, May 1982 and February
1983 Board decisions. Moreover, the veteran's contentions in
this regard assert that the Board failed to evaluate the
evidence correctly, and represents no more than mere
disagreement with how the facts were weighed or evaluated.
As noted above, this cannot constitute clear and unmistakable
error. 38 C.F.R. § 20.1403(d).
In this case, the veteran has failed to provide a basis to
conclude that any of the previous Board decisions were
clearly in error. The contentions amount to a disagreement
with the outcome of the March 1981, May 1982 and February
1983 decisions. The fact that some of the medical evidence
submitted to the Board prior to these decisions supports the
veteran's contention does not provide a basis to conclude
that the March 1981, May 1982 and February 1983 decisions
were clearly and unmistakably wrong. There was also evidence
of record indicating that the service-connected left arm
amputation and mild scoliosis did not in themselves render
the veteran unemployable. As noted above, under 38 C.F.R.
§ 20.1403(d)(3), a disagreement as to how the facts were
weighed or evaluated does not provide a basis to find clear
and unmistakable error.
The veteran has not shown that the correct facts, as they
were known at the time, were not before the Board, or that
the statutory and regulatory provisions extant at the time
were incorrectly applied in the March 1981, May 1982 and
February 1983 Board decisions which denied a total rating for
compensation purposes based on individual unemployability.
The veteran has not shown that there was any error in the
Board's decisions denying a total rating for compensation
purposes based on individual unemployability which, had it
not been made, would have manifestly changed the outcome at
that time.
Accordingly, the veteran's motion for clear and unmistakable
error in the March 1981, May 1982 and February 1983 Board
decisions is denied.
ORDER
The motion for revision of the March 23, 1981, May 4, 1982,
and February 14, 1983 decisions of the Board of Veterans'
Appeals as to entitlement to a total rating based on
individual unemployability due to service connected
disability, on the grounds of clear and unmistakable error is
denied.
U. R. POWELL Member, Board of Veterans'
Appeals